Wednesday, February 15, 2017

A recent DUI case out of Nebraska firmly illustrates some of the problems we still are facing in our courts today. Imagine if you will a woman brought before the court on a DUI probation violation. But she has to be barreled in on a wheelchair stinking drunk. Later to register a .44 BAC, remember .08 is legal intoxication. Is it fair ask her to plead guilty on a first appearance? Is it right to negate her right to decide to plea voluntarily, intelligently, and willfully? Is it fair to provide her ineffective counsel (one who will NOT advocate on her behalf)?

DWI Due Process Requires at a Minimum, Counsel and Understanding at Every Stage of the Court Proceeding

A primary foundational tenet of OUR justice system is DUE PROCESS. These rights encompass fair and just treatment by all members of the court, the right to hear the allegations and charges against us, and to defend those charges in a Court of law. All attorneys, on both sides of the bench are sworn officers of the court. They stand guard on the rights of others. Being a Defense Lawyer requires that we advocate (protect and defend) for others. Being a good DWI attorney means being their mouthpiece, and explaining everything to them thoroughly.

New York DWI probation and Conditional Discharge Violations Require a Defense

What should happen when you violate your New York DWI probation, as this woman did? She allegedly got a new DUI. To add insult to injury she showed up .44 BAC to her first court appearance on the probation violation (the new DUI triggered). This doesn't waive or excuse the conduct in this Nebraska Court room. Nor does it justify the disregard of this court's, the judge's, the prosecutor's, and her own attorney's duties and obligations.

Well in New York State you would begin with an initial appearance. At that appearance you would get a copy of the allegations against you and why they (the probation department) were violating you. Common probation or CD violations include triggering your IID (ignition interlock device) to fail. You (the defense attorney) would then have time to muster up a defense to the charges, contest the allegations, and/or develop reasons why mitigation of punishment was in order. Defense is always: can we use the facts, can we use the law, and can we use equity (fairness).

With many of our DWI probation or conditional discharge violation cases a new (and recent) drug/alcohol evaluation may need to be done. Maybe we need to find out what's going on in this person's life. The question looming is why they could not meet the conditions of probation or their conditional discharge? Yes there is a violation BUT what is the underlying cause of this problem?

Due Process Requires an Accused that is in Fact Voluntary, Intelligent, Willful, and Knowing

Imagine if you are accused of something and are just brought into court high on drugs or drunk. Can you in any way help yourself in this process being so debilitated? Can an attorney (your defender) truly advise you of what's going on?

In Nebraska there was NO plea colloquy. Even though a public defender was provided and was physically present, this PD gave little to NO representation. As a side note the PD quit soon thereafter this case was heard. There was NO Due Process followed.

A Plea Colloquy Requires the Judge Ask Questions Before Proceeding with the Process

Judge's ask lots of questions of defendants for a reason. They need to make sure or ensure that a fair process is being followed.

This is just a basic Guilty Plea Colloquy. This is before any person can plead guilty to something in court. Colloquy is just a fancy word for asking lots of questions, and hopefully getting answers. It is a conversation between the accused and the judge with the defense as a guide.

This question is directed at the defense attorney.

Do I
understand that the defendant wishes to enter a guilty plea? (Maybe at this
point the client needs more time and more explanation.)

Before accepting your guilty plea, there are a number of
questions I will ask you to assure that it is a valid plea.

If you do not understand any of the questions, please say so
since it is important that you fully understand my questions. (must acknowledge that they know what's happening)

They are then administered an Oath.

Do you understand that you are now under oath, and if you do
not answer my questions truthfully, your answers may later be
used against you in another prosecution for perjury or making false statements? (lying to the court is a separate crime, in and of itself)

Please state your name. How old are you? How far did you go
in school? Can you read and write English? What jobs or occupations have you
followed?

Have you ever been treated for mental or emotional issues or
problems of any type?

Have you taken any drugs, medicine or pills within the last
24 hours? (this question was missed by the Nebraska Judge as well as the next).

Are you presently under the influence of alcohol?

- People can't accept pleas or make legal decisions in court if they are out of it on alcohol and/or drugs

What is the present state of your health today?

This is directed to defense counsel: Do you have any
question or doubt as to the

defendant's competence to plead at this time?

Have you received a copy of the written charges against you
in this case?

Have you had an adequate opportunity to discuss these
charges and your case in general with your attorney? (have you had legal counsel?) This is vitally important, that a represented person understands everything going on.

Did you have an adequate opportunity to read and discuss the
plea with your lawyer? (have you had legal counsel?)

Are you fully satisfied with your attorney's representation?
(have you had good legal counsel?)

Ask the defense attorney to summarize the terms of the plea.

Do you understand that under the plea you waive or give up
your right to appeal except as to matters that cannot be waived under the law?

Do you understand that under the plea agreement you waive or
give up your right to file a collateral attack, meaning that in the future you
could not try to have your conviction or sentence set aside except for matters
that cannot be waived under the law or a claim of ineffective assistance of
counsel?

Has anyone made any promise to you other than those made in
the plea agreement that caused you to want to plead guilty?

Has anyone threatened you or attempted in any way to force
you to plead guilty in this case?

Violations of Due Process Occur in Many New York State Courtrooms

The problem isn't that this happened in Omaha, Nebraska in February 2017. The problem is that this lack of respect for Due Process occurs all around the country, including in many New York State courtrooms. I have had town and village court justices (judges) take guilty pleas without the people having had any counsel, that means NO attorney. Worse I've seen plenty of people represented or so they thought but never given any explanation of their rights or a defense to their charges.

We as defenders stand guard at the doors of justice, and without being too dramatic we are the last line of protection for many who are being railroaded through a ramshackle system.

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I personally abhor pretense. Coming from Brooklyn, NY, you can't BS a BSer. As educated or as knowledgeable as I think I am (I have a wife to level me off) I believe everyone deserves respect.

"Question Authority:" I have always questioned authorities. To the dismay of my parents. I dislike unequal and/or unjust relationships (Afterall, I am a Libra). I was born under those scales of justice, and the balance they symbolize.

Authorities to Question and Challenge:

The Government, Law Enforcement, Insurance Companies.

I believe they all need to be kept in check.

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